New iPad Makes My Criminal Defense Practice Sing

Apple's new iPad is a welcomed addition to my arsenal of courtroom technology. Tons lighter that my laptop. It's brilliant and loaded with both business and legal applications. It should make my courtroom experience all the better.

The iPad builds upon the success of the iPhone by incorporating a simple gesture-based touch interface and thin, sleek profile. The display is bright and compelling and is about four (4) times the size of the iPhone's screen. For performing legal research on the go, responding to emails, checking my calendar, and just browsing the web while I'm waiting on the judge . . . the iPad really can't be beat.

Much of my criminal law research is done on an iPhone application called "Fastcase." Its interface is intuitive and fast. On my iPhone the text is a bit small for my aging eyesight, so the large and bright display on the iPad is like heaven. With a Wi-Fi/3g equipped iPad I'm able to access the research database predictably and reliably.

Apple's presentation software, "Keynote", is available in application form for the iPad. Great for preparing jury trial presentations. Moreover, it's a fraction of the price (only about $10) of the full blown software package for my Macbook Pro. With Keynote on the iPad, I can import Microsoft PowerPoint files and Keynote presentations from other computers. Furthermore, using an optional iPad Dock Connector to VGA Adapter, I can connect the iPad to a TV or projector and show my Keynote presentations to the jury on a big screen.

I can't wait to get into action with my new courtroom techo-weapon. I think every criminal trial lawyer ought to consider the iPad. I'm thinking it'll make my life much easier and effective in the courtroom.

Speaking Now Required to Remain Silent

If you have the Constitutional right to remain silent and remain silent in the face of police interrogation, have you preserved your right or waived it? Well, in the recent U.S. Supreme Court (SCOTUS) of Berghuis v. Thompkins, the Court ruled 5-4 that a suspect must speak in order to assert the right to remain silent.

Van Chester Thompkins was given his Miranda warnings and remained silent for almost 3 hours. During that time, the police continued the interrogation. Thompkins eventually made an incriminating statement. A lower federal court found Thompkins had successfully asserted his right to remain silent by actually remaining silent. Further, the lower court held that officers should have ended the questioning. The Supreme Court overturned the lower court.

The majority of the Supreme Court said if police give Miranda warnings to a suspect, they may begin questioning and continue questioning the suspect unless the person clearly and unambiguously announces he desires to remain silent or wants a lawyer. Police are not required to expressly ask a suspect to waive their rights. If the suspect shows incredible stamina (like Thompkins) and manages to remain silent through hours of intense interrogation, he "waives" his right to silence if he eventually caves in to pressure. Consequently, his incriminating statements can be used against him.

The Ballistics Expert in Criminal Defense

Ballistics has been on my mind these past few weeks. I'm defending a criminal murder case in Brazos County which relies heavily upon the prosecutor's ability to link my client to the alleged murder weapon with the expert testimony of a firearms examiner, or ballistics expert.

The criminal defense attorney defending such prosecutions needs a fundamental understanding of the firearms examiner's role in presenting evidence concerning the identification of firearms and ammunition. This is especially true in cases where such identifications are the lynchpin of the prosecution or defense case. Understanding how bullets and cartridge cases can be identified as having come from a specific weapon depends on some knowledge of how firearms are manufactured, particularly pistols and rifle barrels.

First, a hole is bored through a cylindrical bar of steel of the desired diameter. That diameter determines the caliber of the weapon. Next, after the hole is bored, twisting grooves (or rifling) are created inside the barrel. This process causes a fired bullet to spin as it leaves the barrel, giving it more rotational velocity and, consequently, more stability with better accuracy. Regardless of the manufacturing process, each barrel acquires minute marks, called striations (or striae) through minor accidental occurrences in the rifling process. These striations are supposedly not the same for any two barrels and are the basis for the "individuality" of each rifle barrel. Any bullet fired through the barrel will be effected by the unique rifling of that particular weapon.

If a bullet (or bullet fragment) is obtained during the police investigation, often the police want to determine whether a particular weapon fired it. Assuming the police also possess the suspected weapon, the process of identification is straight forward. First, the examiner fires a series of test bullets from the suspected weapon and uses them to compare with the "unknown" bullet obtained during the investigation. The examiner uses a binocular comparison microscope, which is an instrument consisting of two separate microscopes mounted side-by-side. The unknown bullet is placed under one microscope and the test bullet under the other. The examiner then scrutinizes both bullets and attempts to locate similar striations that "match" both the test and unknown bullets. In theory, a careful study of all the detail on both bullets permits the examiner to conclude whether both bullets were, or were not, fired through the same barrel.

In a later post, we'll discuss the identification of a cartridge case and whether is was fired from a particular weapon. Although different from bullet identification, the same principles of probability apply.

Computer Forensic Experts

The spread of crime using computers was inevitable, even in the sleepy towns of Bryan|College Station, Texas. The ease with which people can access literally billion of documents and images over the internet has made computer "crimes" a hot area in law enforcement in recent years. Our question is how to defend against such charges by the government? One answer is using computer forensics, that is, utilizing a defense expert to preserve, analyze, and produce data from computer media storage.

When conducting an analysis in computer forensics, the “expert” uses tools (i.e., software) to examine and extract information pertaining to the alleged crime. However, a problem area is whether one can be considered an expert solely based on their ability to use a tool or software package to analyze the computer data, without the ability to clearly define how the tool works or reviewing the source code. The majority of the tools and software used by computer forensics experts is proprietary and copyrighted. This eliminates the ability to access the source code. Currently, this inability of the expert to test the code and understand how it works has not hindered the admissibility of an expert’s testimony. In Texas, criminal courts have found that an expert does not need to know the code of the software package nor the background processes. (see Williford v. Texas 127 S.W.3d 309) Questions arise concerning whether an expert who cannot attest to area three of Daubert qualifies as an expert.

The third criteria of Daubert states specific factors such as peer review, error rates, and acceptability in the relevant scientific community are important elements to consider when determining the reliability of a scientific test, including proprietary software programs used to analyze a computer hard drive. However, it's difficult to meet the third criteria due to a lack of error rates for most of the software used by the forensic experts. Additionally, there are no standards in the field or peer reviews of methods. The courts have found that an inanimate object (e.g. a software package) cannot be considered an expert. This does not mean the object (or results from that object) cannot be used for scientific testimony. The individual using the software package simply needs to testify regarding the procedures used.

A possible argument to be made in criminal court regarding the third criteria of Daubert is that the computer forensic community has accepted certain industry standard tools such as EnCase, a common program used by experts to analyze computers. The question, then, becomes whether it's justified to say that the "relevant scientific community" has accepted certain software packages? Currently, experts must qualify their educational background, which includes courses taken by corporate or federal agencies on how to operate software packages (like EnCase).

The bottom line is that computer forensic experts can be invaluable to the computer crime defense attorney. For court-appointed cases, the defense lawyer can use ex parte motions for expert assistance to obtain funds to hire such experts.

AKE Motion for Expert Assistance

The Ake v. Oklahoma motion for expert assistance is one of the most powerful tools at the criminal defense lawyer's disposal. Typically utilized by criminal lawyers appointed by the court, the motion is used to compel trial judges to approve funding to hire anyone from a private investigator to forensic computer expert to polygraph examiner. The beauty of this approach is two-fold. First, the defense lawyer is authorized to approach the judge ex parte, meaning without the knowledge of the state prosecutors. This allows the lawyer to reveal his defensive theories to justify the expense without the prosecutor learning about it. Second, the hired expert now becomes part of the "defense team" and is protected by the attorney's work-product privilege. This means the expert is now prohibited from revealing anything about their investigation to anyone without the client's express authorization.

There are important hoops the defense lawyer must navigate to compel judges to approve funding. The lawyer must first show the defendant is indigent and cannot afford to hire an expert on their own. The lawyer must also show the need for the expert involves some "significant factor" at the guilt/innocence or punishment phase of trial. This usually means the expert will be needed to develop certain types of evidence used in rebuttal or used to challenge the prosecutor's case. At times, the defense lawyer might need to demonstrate the legal admissibility of the evidence they are attempting to develop through the expert.

Next, the lawyer must present the expert's qualifications. This takes the form of a resume or vita. The judge will also need an estimate of the fees and expenses anticipated. I typically use the letter sent to me by the expert setting forth the proposed work, including trial testimony.

Lastly, the lawyer must state that neither he, nor his client, is sufficiently knowledgeable in the area of expertise for which they need assistance. I suppose if a lawyer was trained in forensic child psychology, the lawyer could serve as his own expert in a child abuse case. Sounds pretty silly, but still one of the necessary hoops we need to jump through.

Brazos County judges are usually very cooperative in granting funding when I apply. They might quibble over the cost at times, and sometimes I'll need to convince my expert to work for a bit less, but usually I get exactly what I ask for. Then, with the funding in hand for my expert of choice, I feel more confident in providing my clients with an effective defense.

Dropping Charges - The Non-Prosecution Affidavit

Clients often ask whether the prosecutor will dismiss their criminal case if the complainant "drops the charges?" During this scenario the complaining witness may contact the prosecutor and ask them to stop the prosecution of their case. In Brazos County, the prosecutors require the complainant sign a "non-prosecution affidavit" in support of this request.

Note the complainant has no actual authority to compel the State to dismiss a case. Rather, the prosecutor has absolute authority to continue, or not, the prosecution of any criminal case in Bryan|College Station or any other area of Texas. However, in the right situation a non-prosecution affidavit from the alleged victim can go far in giving the accused person negotiation leverage. That is, many times the prosecutor does agree to dismiss the case, or sometimes reduce charges, based on the wishes of the victim. But in other cases, like those involving serious violence, I've seen prosecutors give a non-prosecution affidavit the "circular file" treatment. That is, no value whatsoever.

So, when speaking with your criminal defense attorney about the issues in your case, don't forget to let them know if the alleged victim might be willing to sign a non-prosecution affidavit. Be very careful, though. DO NOT attempt to persuade, convince, or coerce an alleged victim to "drop charges." There are criminal laws prohibiting retaliation against a person who is a victim or one who reports the occurrence of a crime. You could be prosecuted for a serious felony offense, like retaliation, if you said the wrong things or inadvertently frightened the victim. LET YOUR LAWYER handle this matter after consulting with you.

Failure To Communicate Plea Offers

The criminal defense lawyer's professional responsibility to each client is to timely communicate plea bargain offers made by the prosecutor. When defense attorneys fail to communicate plea offers to clients they commit ineffective assistance of counsel, which can often lead to reversal in a criminal case.

To establish an ineffective assistance of counsel claim the client must, first, prove their lawyer's representation fell below an objective standard of reasonableness. Second, the client must prove the deficient performance resulted in prejudice.

Failure of defense counsel to inform a client of plea offers made by the prosecution is an omission that falls below a standard of professional reasonableness. Furthermore, courts have been unanimous in finding that defense counsel's failure to inform a client of a plea offer constitutes a violation of the person's Sixth Amendment constitutional right to effective assistance of counsel.

But the failure to advise the client of the offer is not quite enough to obtain a reversal. The client must also show they were harmed by the lawyer's unprofessional conduct. In other words, the client must further prove they would have accepted the plea offer had it been communicated. Luckily, the courts have not required defendants prove the trial court would have accepted the plea bargain to establish harm. Only that the defendant missed the opportunity of accepting such a bargain and presenting it to the trial court for consideration.

If you find out your lawyer failed to communicate a plea offer to you, contact new defense counsel immediately. Relief might be available and you need to discuss the matter with an informed and experienced criminal defense lawyer as soon as possible.

Patience's a Virtue in Brazos County

The smile on my client's face made the long wait worth it. He'd been arrested in November 2008 and charged with 8 counts of aggravated robbery, one count of burglary, and assorted controlled substance charges. During each visit with my client I encouraged him to remain patient. We had investigated the facts of the serious robbery charges and determined there was little evidence to prove guilt, if any.

The nature of this case dovetailed well with my earlier post regarding the corroboration of accomplice testimony. Here my client was being held on the testimony of an accomplice. (which can be probable cause enough to indict and detain) However, with the help of my investigator we demonstrated the State had no corroboration. After we brought this to their attention, we went before the judge requesting a bond reduction. Although we failed to obtain the personal bond we sought, the judge did lower the bonds significantly. However, we continued to wait and wait for the prosecutor to perform their follow-up investigation and come to the same conclusion we had, no corroboration.

That was 9 months ago. Finally, our patience paid off when the State agreed they'd dismiss 8 counts of aggravated robbery and one county of burglary against my client. We resolved the remainder of the charges with a plea bargain for time-served, and my client couldn't be happier. He's going home very soon.

So the moral of the story is be prepared with a large dose of patience. A good criminal defense lawyer can help you understand the ins and outs of your particular situation. But most of the time it's the prosecutor that must come around and see the handwriting on the wall.

Probation and the Motion to Revoke

Probation can be a welcomed second chance for good folks running afoul of the law. A person on probation can expect to attend monthly meetings with a supervision probation officer, attend education classes for offenses involving drugs and alcohol, perform community service, and pay fines, fees, and court costs. Depending upon the trouble the person got into, there may be other conditions of probation, even county jail time, that must be complied with before they are successfully discharged from probation.

Problems arise when a probationer begins to violate the terms of their probation. Something as simple as a dirty urine screen can land one back in court to endure the wrath of prosecutor and judge. In the worse cases, motions to revoke probation are filed by the prosecutor which result in warrants issued for your arrest. In Texas, if a motion to revoke is filed on a misdemeanor offense the probationer is entitled to a bond. However, in a felony case the probationer can be held without bond, in the county jail, until the resolution of their case.

An important thing to remember is that everything you say to your probation officer can ultimately be used against you later. If you admit doing drugs while on probation, for instance, the probation officer can come to court later and testify about what you said. Your statement alone can be used by the judge to find a probation violation and sentence to jail, or prison. Like I tell all my clients going onto probation, your probation officer can be your friend, and slit your proverbial throat, all at the same time.

Unfortunately, probationers must be guarded in what they say to their probation officer. Especially folks who tempt fate by violating their conditions hoping the officer does not find out. If you violate probation and are confronted by your officer, remember you have the absolute right to remain silent. In that case, the supervising officer might make your life miserable, but at least you aren't supplying them information to use against you. The best approach is to contact a qualified Bryan|College Station criminal defense lawyer before saying anything incriminating to the officer. At a minimum, the criminal lawyer can talk with the officer and prosecutor without the risk of incriminating you.

Possession of Marijuana, Drugs, and Other Illicit Contraband.

Bryan|College Station criminal defense lawyers regularly deal with possession issues in the field of criminal law. The most common charges brought against folks in Brazos County involve marijuana, controlled substances (including dangerous drugs), alcohol, and weapon charges. Certainly possession of illicit pornography and stolen property could be included in this list of potential offenses. The question I most often answer for clients is the difference between possession and ownership as it relates to charges brought against them.

Texas criminal law prohibits more than ownership of illegal materials. In fact, possession is the key issue. Or should I say "knowing" possession is the most common hook upon which the defense lawyer hangs their hat. Let's look first at how possession is defined.

Possession is typically defined as having "actual care, custody, control, or management" of some illicit contraband. Notice that "ownership" is not included in this definition. In other words, someone need not own something in order to possess it. A simple example helps explain the point. Suppose several college buddies (all under 21 years of age) go out for a night on the town. One person brings along a twelve pack of Bud Light which they purchased earlier in the evening. (a separate offense, by the way) Each person has a beer and finishes by throwing their empty can on to the backseat floorboard. A traffic stop then occurs where the police observe the unopened cans of beer in the front seat. Although the one friend owned the beer, each person in the car could potentially be charged with possessing the alcoholic beverage.

Another, often overlooked, aspect of the possession case is whether the charged person "knew" they were in possession. If the police cannot prove the defendant knowingly possessed contraband they are unable to obtain a conviction. Supposed the same group of friends went out together, but this time without the beer. Instead, the owner of the car had baggies of marijuana stashed under the seats, in the glove box, and in the trunk . . . all without the knowledge of his friends. The same traffic stop occurs and the marijuana is located by the police. Now, although the marijuana was within easy reach of each person in the car (and arguably in their possession) only the driver actually knew it was there. Commonly, each person would be arrested and charged, but unless the prosecutor can prove knowledge the accused friends should escape conviction. (with the help of a good criminal defense attorney, of course).

Possession charges are one of the most common criminal offenses charged against persons in Brazos County. However, the experienced defense lawyer can help the accused person navigate these dangerous waters. Help is available, so don't go it alone.

Texas Drug Free Zones

Possession of controlled substances (including marijuana) within "drug-free" zones in Brazos County (and all areas of Texas, for that matter) result in more sever penalties and punishments. Depending upon the alleged offense, the range of potential punishment can rise to the next higher level, or minimum possible punishments can be increased. Even more problematic is the provision that punishments increased under the drug-free zone provision MUST run consecutively to other sentences imposed for other crimes. In other words, sentences under this scenario are stacked one upon another.

For instance, a person gets into a knife fight within 1000 feet of premises of a school, public youth center, playground, or on a school bus. Further, the person has several grams of a controlled substance in their possession and it's found upon their arrest within the zone. If convicted of aggravated assault and convicted of possessing the controlled substance in a drug-free zone, the punishment for the drug-free zone offense must be stacked on top of the punishment for the aggravated assault. Very onerous, indeed.

Assuming facts exist to convict, the accused is in a very tight spot. The criminal defense lawyer would be successful if able to persuade the prosecutor to waive the drug-free zone allegation, thereby removing the automatic stacking provision. In any case, the prosecutor's in the driver's seat and defense lawyers must work hard to help client's make the best of a poor situation.

Corroboration Required: Accomplices, Jailhouse Snitches, and Drug Informants

Thank goodness the Texas Legislature had the good sense to require corroboration of certain prosecution witnesses before a jury could legally convict someone for a crime. For years the accomplice witness rule prevented the government from convicting someone based solely upon the testimony of an accomplice. That is, someone who was involved in the crime, got caught, and then turned State's evidence to save their own hide.

Even the village idiot knew such testimony was inherently unreliable and could routinely lead to the imprisonment of innocent people. Consequently, the accomplice witness rule demanded a defendant not be convicted of an offense on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the crime. Moreover, corroboration was not sufficient if it merely showed the commission of the offense. In other words, even if a jury believed everything an accomplice witness testified about, the law prohibited a conviction unless there was other evidence connecting the accused to the crime.

In recent years, two new laws were enacted requiring corroboration of other types of prosecution witnesses. First was the jailhouse snitch rule and then the drug informant rule. Both rules were similar to the accomplice witness rule in that corroboration was required before a jury could convict someone based on the testimony of these witnesses. Again, the inherently unreliable nature of this testimony raised the specter of convicting innocent persons.

Interestingly, Texas case law has held one type of unreliable witness cannot be used to corroborate another. For example, a jailhouse snitch cannot be used to corroborate the testimony of an accomplice, and vice-versa. The same holds true for drug informant testimony.

The challenge for the criminal defense attorney is getting the jury to commit to corroboration. In other words, if a jury believed the accomplice was telling the truth, they'd be reluctant to acquit someone based on their perceived moral responsibility to convict the guilty. Sometimes a crime is so awful, or the jury so afraid, that they invent corroboration in order to convict. The good news is that appeal courts use the corroboration requirement when evaluating evidence sufficiency questions. Stated another way, if there truly is no corroboration, the defendant has an excellent chance on appeal for a reversal.

More On Polygraphs

Polygraphs continue to serve as invaluable tools for Bryan|College Station criminal defense lawyers when clients are accused of a crime in Brazos County. Recently, while talking with my local polygrapher, Stuart Ervin, owner of Central Texas Polygraph, Bryan, TX who reminded me how often a client's skin is saved by a clean polygraph chart. Stuart noted how the polygraph is used to demonstrate the client's truthful story to a grand jury. Stuart also noted while the number of people who fail the polygraph is high, clients often share valuable information with him they hadn't disclosed to me, their defense lawyer. This confidential information is important in planning an effective defense, nonetheless.

Stuart noted the risk of taking a PRIVATE polygraph is zero. (polygraphs given by the police, however, ARE NOT confidential and can be used against the client) The entire polygraph record is considered attorney/client work product and is always absolutely confidential when the polygrapher is hired as a defense expert. Furthermore, professional polygraphers and their staff remain obligated to keep all client interviews completely secret.

Finally, if the results of a polygraph are positive, then the price for the exam (usually around $500.00) is a small one. We now possess a report widely utilized by grand juries demonstrating the truthfulness of the client. If the polygraph results are negative, the exam remains confidential . . . as if the exam never took place.

So don't be afraid of a private polygraph administered by your lawyer's hired expert. It just might save your skin, too.

Changing the No-Blow Paradigm

For years the standard operating procedure for DWI suspects in Brazos County was no-blow. That is, once a person was arrested for driving while intoxicated, the best defense was a good offense and suspects were encouraged by College Station criminal defense lawyers to refuse any breath or blood test requested by the arresting officer. However, times have changed over the past several years with the gathering momentum of blood draw warrants.

Blood draws pursuant to a search warrant occur shortly after a person arrested for DWI is taken to the local police department and refuses to submit to a chemical test. Blood draw search warrant affidavits and search warrant forms are now readily available to law enforcement in Bryan|College Station. Local judges are on call 24/7 to review affidavits and grant warrant requests when the facts support the officer's request. The DWI suspects are then transported to a local hospital, their blood is drawn and sent to DPS for analysis.

What's the problem for citizens from whom blood was drawn after their DWI arrest? Simply, a blood test is much more difficult to defend than a breath test. Breath samples analyzed by the Intoxilyzer 5000 can be attacked in many credible ways. We've discussed the problems with the Intoxilyzer on many occasions here at the Defense Perspective. However, blood testing does not suffer from the same, wide array of problems. There are ways to attack a blood test, but not nearly as effectively.

Consequently, the no-blow paradigm may be changing in Bryan, TX DWI defense. The best way to avoid the problem is to avoid drinking-and-driving. However, in a large college town like Bryan|College Station, students rarely take this issue into consideration before a night out on the town. So, if you drink and drive in Brazos County, it may be time to start saying yes when asked to submit to a breath test. But better you never get asked.